People v. Nielsen

2024 IL App (1st) 221809, 254 N.E.3d 422

• Court: Appellate Court of Illinois
• Decided: August 23, 2024
• Docket: 1-22-1809
• Status: Published

Opinion

2024 IL App (1st) 221809

FIFTH DIVISION August 23, 2024

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

No. 1-22-1809

) THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 2021 CR 07552 01 ) TIMOTHY NIELSEN, ) Honorable ) Shelley Sutker-Dermer, Defendant-Appellant. ) Judge Presiding. )

JUSTICE MIKVA delivered the judgment of the court, with opinion. Presiding Justice Mitchell and Justice Lyle concurred in the judgment and opinion.

OPINION

¶1 Defendant Timothy Nielsen pled guilty to reckless driving at a hearing pursuant to a traffic

ticket. He has moved to dismiss separate felony charges for attempted murder and aggravated

battery that the State brought based on facts arising from the same incident as the ticket. He argues

that section 3-3 of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/3-3 (West 2020)), the

compulsory joinder statute, bars the State from pursuing felony charges.

¶2 In a written order, the circuit court denied Mr. Nielsen’s motion. He filed an interlocutory

appeal and, following an affirmance by this court, a petition for rehearing. For the reasons that

follow, we affirm the circuit court’s decision and deny the petition for rehearing. No. 1-22-1809

¶3 I. BACKGROUND

¶4 On May 1, 2021, Mr. Nielsen was arrested. At that time, the police used uniform citation

and complaint forms to issue Mr. Nielsen two tickets, one for reckless driving under section 11-

503 of the Illinois Vehicle Code (625 ILCS 5/11-503 (West 2020)) and another for operating an

uninsured vehicle under section 3-707 of the Vehicle Code (id. § 3-707). Two days later, the State

charged Mr. Nielsen by complaint with four counts of attempted murder under sections 8-4 and

9-1 of the Criminal Code (720 ILCS 5/8-4, 9-1 (West 2020)). On June 1, 2021, the State obtained

a superseding indictment charging Mr. Nielsen with four counts of attempted first degree murder

(id.) and four counts of aggravated battery under section 12-3.05 of the Criminal Code (id.

§ 12-3.05(c)). The indictment alleged that Mr. Nielsen, “without lawful justification, with intent

to kill, *** drove and accelerated a motor vehicle towards” four people, striking two, and that he

committed aggravated battery with respect to those two individuals. Two of the aggravated battery

charges were for knowingly causing bodily harm and two were for causing such harm with a deadly

weapon, i.e., a car.

¶5 On January 24, 2022, Mr. Nielsen appeared in municipal court and accepted a negotiated

plea offer for the traffic citations. He pled guilty to reckless driving, and the State dropped the

charge of operating an uninsured vehicle, recommending a sentence of two days in custody with

time considered served. The State and Mr. Nielsen stipulated that there was a factual basis for the

plea although there is nothing in the record about what that was. The court accepted the parties’

negotiated plea deal and sentenced Mr. Nielsen to two days, with time considered served.

¶6 On August 19, 2022, Mr. Nielsen filed a motion to dismiss the indictment for attempted

murder and aggravated battery. He argued that section 3-3 of the Criminal Code (id. § 3-3), as well

as provisions of the United States Constitution (U.S. Const., amend. V) and Illinois Constitution

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(Ill. Const. 1970, art. I, § 10), barred the State from pursuing the felony charges because the State

was required to bring those charges in the same proceeding as the reckless driving charge to which

Mr. Nielsen had already pled guilty. Mr. Nielsen argued that allowing the State to proceed on these

felony charges violated the compulsory joinder statute (720 ILCS 5/3-3 (West 2020)) and

constituted double jeopardy or was barred by collateral estoppel.

¶7 In a thorough written order, the circuit court found that, under People v. Jackson, 118 Ill.

2d 179 (1987), overruled on other grounds by People v. Stefan, 146 Ill. 2d 324 (1992), the

compulsory joinder statute did not apply to offenses charged by uniform traffic citation. It further

ruled that collateral estoppel did not apply to Mr. Nielsen’s plea of guilty and double jeopardy did

not apply because reckless driving was not a lesser included offense of either attempted murder or

aggravated battery.

¶8 Mr. Nielsen filed an interlocutory appeal, pursuant to Illinois Supreme Court Rule 604(f)

(eff. July 1, 2017), permitting a criminal defendant to appeal the denial of a motion to dismiss

based on grounds of former jeopardy. The only claim that Mr. Nielsen is pursuing in this appeal is

that this prosecution is barred by the compulsory joinder statute.

¶9 II. JURISDICTION

¶ 10 The circuit court ruled on Mr. Nielsen’s motion to dismiss the indictment on October 24,

2022, and Mr. Nielsen timely filed a notice of appeal from that order on November 21, 2022. We

have jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art.

VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013), Rule 604(f) (eff. July 1, 2017),

and Rule 606 (eff. July 1, 2017), governing appeals in criminal cases on grounds of former

jeopardy.

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¶ 11 III. ANALYSIS

¶ 12 The compulsory joinder statute provides as follows:

“(b) If the several offenses are known to the proper prosecuting officer at the time

of commencing the prosecution and are within the jurisdiction of a single court, they must

be prosecuted in a single prosecution, except as provided in Subsection (c) [(where the

court may order a separate trial in the interest of justice)], if they are based on the same

act.” 720 ILCS 5/3-3(b) (West 2020).

¶ 13 Our supreme court has recognized, however, that the “compulsory-joinder provisions of

section 3-3 do not apply to offenses that have been charged by the use of a uniform citation and

complaint form provided for traffic offenses.” Jackson, 118 Ill. 2d at 192.

¶ 14 Chief Justice Anne Burke explained the reasoning behind this rule in her recent special

concurrence in People v. Rogers, 2021 IL 126163, ¶ 60 (Anne M. Burke, C.J., specially

concurring, joined by Neville, J.). There, she said,

“the joinder statute contemplates active involvement by the proper prosecuting officer at

the commencement of the prosecution [citation] and the State’s Attorney would not

generally be an active participant at the time when charges are filed by a police officer by

means of a uniform citation and complaint form, we [therefore] concluded [in Jackson]

that compulsory joinder [does] not apply to offenses brought by uniform citation.” Id.

¶ 15 In Jackson, a police officer issued the defendant a ticket charging him with two traffic

violations—driving under the influence and illegally transporting alcohol—following an auto

accident that led to the death of the defendant’s passenger. Jackson, 118 Ill. 2d at 183. The

defendant pled guilty. Id. Before sentencing, and about three weeks later, the State nol-prossed

both misdemeanors and later indicted the defendant on felony charges of reckless homicide. Id.

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The defendant moved to dismiss the indictment, arguing that compulsory joinder barred the State

from pursuing the reckless homicide charges. Id. The circuit and appellate courts agreed,

dismissing the indictment. Id.

¶ 16 Our supreme court reversed, holding that section 3-3 did not bar the felony prosecution. Id.

at 193-94. The court pointed out that the language of the compulsory joinder statute requires

joinder of offenses “only if the several offenses are known to the proper prosecuting officer at the

time of the commencement of the prosecution.” Id. at 192-93. In the court’s view, the state’s

attorney, and not the police, was the “proper prosecuting officer” contemplated by section 3-3. Id.

at 193. Thus, under the compulsory joinder statute, a uniform citation complaint issued by a police

officer cannot mark the commencement of any felony prosecution and an offense listed on such a

citation does not preclude the state’s attorney from later bringing felony charges.

¶ 17 In support of this distinction, our supreme court pointed out how judicial reforms occurring

after the statute’s enactment altered section 3-3’s application. Previously, Illinois was divided

between a “confusing array” of courts whereby criminal actions and minor misdemeanors

advanced in separate forums. 14 Ill. L. and Prac. Creation of Court System; Restructuring § 115

(August 2024 Update). After the statute’s enactment, constitutional changes unified the circuit

court and altered the statute’s context. As the supreme court stated,

“It should be remembered that [section 3-3] was written prior to our 1970

Constitution, which established a single unified trial court—the circuit court [citation]—

and prior to our rules for traffic and conservation offenses, which were adopted in 1967

[citation]. Therefore, while it is obvious that section 3-3 was intended by the legislature to

curtail abuses of prosecutorial discretion, it is also obvious that this statute, discussing

prosecutions within the jurisdiction of a single court, conducted by proper prosecuting

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officers, did not contemplate the changes that were to occur in our legal system.”

(Emphases in original.) Jackson, 118 Ill. 2d at 193.

¶ 18 Section 3-3 did not therefore apply to traffic prosecutions initiated by police officers that

would have, at the time of the statute’s enactment, advanced in a separate court different from that

of felony charges initiated by the state’s attorney’s office. In sum,

“We do not believe that the legislature intended that a driver could plead guilty to a traffic

offense on a traffic ticket issued by a police officer and thereby avoid prosecution of a

serious offense brought by the State’s Attorney, such as reckless homicide, through the use

of section[ ] 3-3 *** of the Criminal Code.” Id.

¶ 19 The situation in Jackson is the same as in Mr. Nielsen’s case. In both cases, the police

officer charged the defendant with misdemeanor traffic violations using traffic citation forms. Id.

at 183. The state’s attorney’s office then later brought felony indictments. Id.

¶ 20 Mr. Nielsen tries to distinguish Jackson on two bases. He first argues that Jackson only

applies to charges properly brought through the use of a uniform traffic citation and complaint

form. Because the reckless driving charge to which Mr. Nielsen pled guilty was not specifically

listed as a charge on the uniform traffic citation form, Jackson cannot apply.

¶ 21 The form itself is divided into several sections. Located at the center, a box lists 17 specific

traffic offenses, including driving on a suspended or revoked license (625 ILCS 5/6-303(a) (West

2020)), driving under the influence (id. § 11-501(a)), and operating an uninsured vehicle (id. § 3-

707). To charge any of these 17 offenses, a police officer need only fill out the rest of the form and

check the appropriate box. The form also includes a separate box titled “Other Offenses” that

requires a police officer to write in both the title and section of a traffic offense not listed among

the 17 prelisted offenses.

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¶ 22 In Mr. Nielsen’s case, the issuing officer had to write “section 11-503” and “Reckless

Driving” in the area of the form marked “Other Offenses” to charge Mr. Nielsen with reckless

driving. The fact that reckless driving is not one of the 17 offenses specifically listed on the form

does not change the fact that this was a misdemeanor charge issued by a police officer on a uniform

traffic citation form. Thus, we reject Mr. Nielsen’s first attempt to distinguish Jackson.

¶ 23 Mr. Nielsen’s second and primary argument is that Jackson cannot apply here because the

state’s attorney’s office, as the “proper prosecuting authority,” was aware of all charges and the

facts underlying those charges at all relevant times. According to Mr. Nielsen, from the time that

Mr. Nielsen’s traffic ticket prosecution began, the state’s attorney was “actively involved” in the

prosecution of those tickets. Mr. Nielsen points to a number of facts in support of this argument:

(1) he was arrested for attempted murder at the same time that he was issued a citation for reckless

driving; (2) the citation itself noted that it was issued under the authority of the People of the State

of Illinois; (3) the police report that was generated following that arrest noted the traffic citations;

(4) the state’s attorney’s office approved the felony charges two days later; (5) by the time the first

court date was held on the traffic citation, the State had filed a felony complaint and obtained a

superseding indictment for the felony charges; and (6) it was the state’s attorney’s office that

prosecuted the traffic citation and worked out a plea deal with Mr. Nielsen on that charge.

¶ 24 We do not believe that any of these facts substantively distinguish Jackson or make joinder

of the felony charges and the traffic ticket compulsory. While the court in Jackson did note that

the compulsory joinder statute requires “joinder of offenses only if the several offenses are known

to the proper prosecuting officer at the time of the commencement of the prosecution” (Jackson,

118 Ill. 2d at 192-93), the court drew a line between traffic offenses charged on tickets issued by

police officers at the scene and felony charges later brought by the state’s attorney. The timing of

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when the state’s attorney’s office becomes aware of the facts that underlie the various charges is

not determinative. Just as in Jackson, the felonies here could not have been part of the traffic

citation that was issued at the scene. The fact that the state’s attorney may have known of these

traffic citations earlier in this case than in Jackson does not change the fact that the state’s attorney

did not issue that ticket or bring those charges. Moreover, the fact that the state’s attorney had

some role to play in the prosecution of the traffic tickets was equally true in Jackson, where it was

the state’s attorney who moved to nol-pros the traffic ticket charges. Id. at 183.

¶ 25 The distinction that Mr. Nielsen would have us draw would require a case-by-case inquiry

into what the state’s attorney knew about the traffic tickets issued and when that information was

obtained. That seems unworkable and contrary to the straightforward line the supreme court drew

in Jackson: the State is not barred by the compulsory joinder statute from bringing felony charges

where a defendant has already been charged with traffic offenses by a police officer through a

uniform citation and complaint form.

¶ 26 Mr. Nielsen cites People v. Delhaye, 2021 IL App (2d) 190271, to support his contention

that Jackson is limited to those cases where the state’s attorney learns new facts to support the

felony charges after the traffic citation has been issued. There, a police officer issued the defendant

a citation for failure to reduce speed following a traffic accident that resulted in the death of a

minor. Id. ¶ 5. An investigation later revealed that the defendant had been texting at the time of

the accident. Id. ¶ 67. The state’s attorney then brought felony charges. Id. The court noted that

compulsory joinder requires “knowledge of the possibility of additional charges when the

defendant is initially charged,” which could not have occurred there because the State did not

possess knowledge of the text messaging until after the defendant was charged with the initial

misdemeanors. Id. But in Delhaye, the state’s attorney’s newly acquired knowledge of the texting

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was an additional reason that joinder was not compulsory. The Delhaye court also cited Jackson

for the same reason we do, “ ‘that the compulsory-joinder provisions of section 3-3 do not apply

to offenses that have been charged by the use of a uniform citation and complaint form provided

for traffic offenses.’ ” Id. ¶ 59 (quoting Jackson, 118 Ill. 2d at 192).

¶ 27 Mr. Nielsen cites additional cases that raise issues around Jackson’s application but are

inapplicable here. People v. Kazenko, 2012 IL App (3d) 110529, People v. Thomas, 2014 IL App

(2d) 130660, and Rogers, 2021 IL 126163, all address whether Jackson applies when the state’s

attorney’s office brings a superseding misdemeanor charge that—unlike felonies—could have

theoretically been brought by the police officer that issued the uniform traffic citation. Each case

assumes the precedential value of Jackson’s central holding—that when the State charges a

defendant with a felony after a police officer issues a traffic citation, compulsory joinder does not

bar the felony prosecution—while disagreeing about whether that rationale extends to

misdemeanors. See Kazenko, 2012 IL App (3d) 110529, ¶ 14 (compulsory joinder “does not apply

to [all] offenses that are charged by a uniform citation and complaint form provided for traffic

offenses because the compulsory-joinder rule does not apply to offenses charged in that manner”

(citing Jackson, 118 Ill. 2d at 192-93)); Thomas, 2014 IL App (2d) 130660, ¶ 22 (disagreeing with

Kazenko and holding that compulsory joinder does apply where a misdemeanor charge is brought

by the sheriff’s deputy and then the State files another misdemeanor charge that could have been

brought by the deputy at the same time as the original charge); Rogers, 2021 IL 126163, ¶¶ 31-32

(noting but not resolving the conflict). Whether Jackson applies when the state’s attorney later

brings a misdemeanor, rather than a felony charge, may still be a matter for debate. But that

problem is not relevant here.

¶ 28 Mr. Nielsen also argues that Jackson’s application, at least in his case, would allow the

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State to obtain inconsistent verdicts. Mr. Nielsen points out that the mental state for reckless

driving is “willful or wanton disregard” for the safety of others (625 ILCS 5/11-503(a)(1) (West

2020)), which is inconsistent with the requisite mental states for attempted murder and aggravated

battery, which require “intent” (720 ILCS 5/8-4(a) (West 2020)) to commit murder (id. § 9-1) and

“knowing[ ]” action (id. § 12-3.05(a)) respectively. However, as our supreme court has

recognized, a criminal defendant can be charged with a series of acts which require different mental

states. See People v. Spears, 112 Ill. 2d 396, 405 (1986) (describing how a trier of fact “could

rationally find separable acts accompanied by [separable] mental states to support all of the

verdicts as legally consistent”). In the course of events on May 1, 2021, Mr. Nielsen could have

engaged in some conduct that was reckless and other conduct that was intentional and knowing.

The actions alleged in the indictments, which included driving with intent to kill and knowingly

striking people with his car, were certainly not inherently in conflict with a charge of reckless

driving.

¶ 29 IV. DENIAL OF PETITION FOR REHEARING

¶ 30 After we issued our decision, Mr. Nielsen filed a petition for rehearing in which he argued

that this court’s application of Jackson went beyond our supreme court’s decision and contradicted

the plain language of section 3-3. Mr. Nielsen’s argument is that Jackson is inapplicable because,

in his case, as opposed to Jackson, the “proper prosecuting officer,” i.e., the Cook County State’s

Attorney’s Office, had knowledge of the charged traffic offenses when it commenced the separate

felony prosecution. We asked for an answer from the State and allowed Mr. Nielsen to file a reply.

After considering these additional briefs, we deny the petition and adhere to our initial decision.

¶ 31 In Jackson, our supreme court stated the following in unambiguous terms: “We hold today

that the compulsory-joinder provisions of section 3-3 do not apply to offenses that have been

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charged by the use of a uniform citation and complaint form provided for traffic offenses.”

Jackson, 118 Ill. 2d at 192. As this court has recognized since, “The supreme court’s statement on

that issue in Jackson could not be any more clear ***.” Kazenko, 2012 IL App (3d) 110529, ¶ 16;

accord Delhaye, 2021 IL App (2d) 190271, ¶ 69 (“nothing in Jackson limited the holding to cases

in which the initial traffic charges were nol-prossed. Rather the court stated in no uncertain terms:

‘We hold today that the compulsory-joinder provisions of section 3-3 do not apply to offenses that

have been charged by use of a uniform citation and complaint form provided for traffic offenses’ ”

(quoting Jackson, 118 Ill. 2d at 192)). As Mr. Nielsen recognizes, “a holding of the Illinois

Supreme Court has the force of law,” and we are not free to disregard it. International Ass’n of

Fire Fighters, Local 50 v. City of Peoria, 2022 IL 127040, ¶ 19.

¶ 32 Our reading of Jackson is that our supreme court was aware of the tension that Mr. Nielsen

points out between its holding and the language of the compulsory joinder statute. The supreme

court simply considered that language in the context of the legislature’s understanding and

purpose. See Stewart v. Industrial Comm’n, 115 Ill. 2d 337, 341 (1987) (“the court may properly

consider not only the language used in a statute, but also the reason and necessity for the law, the

evils sought to be remedied, and the purpose to be achieved”). As the supreme court specifically

noted, and as we explained in our decision (supra ¶¶ 17-18), “[i]t should be remembered that this

statute was written prior to our 1970 Constitution” (Jackson, 118 Ill. 2d at 193). The joinder statute

did not therefore contemplate judicial reforms that would bring traffic offenses charged by police

officers into the same court system as felonies charged by a state’s attorney’s office. The

“fundamental aim of statutory construction is to ascertain and give effect to the intent of the

legislature” (internal quotation marks omitted) (Mickiewicz v. Generations at Regency, LLC, 2020

IL App (1st) 181771, ¶ 15) and “[t]he meaning of a statute *** depends upon the intent of the

11 No. 1-22-1809

drafters at the time of its adoption” (emphasis in original and internal quotation marks omitted)

(Corbett v. County of Lake, 2017 IL 121536, ¶ 25). In our view, the Jackson holding follows these

fundamental rules of statutory construction and held that the statute did not apply where, as in this

case, offenses were separately charged by the use of a uniform citation and complaint form

provided for traffic offenses.

¶ 33 Mr. Nielsen would have us construe the holding in Jackson as limited to situations in which

the state’s attorney’s office, as the proper prosecuting authority, had no knowledge of the traffic

offenses—something he insists was true in Jackson. The supreme court, however, could have made

this limitation part of the Jackson holding by simply adding that the compulsory joinder provisions

of section 3-3 do not apply to offenses that have been charged by the use of a uniform citation and

complaint form where the proper prosecuting authority lacks knowledge of those offenses. The

supreme court did not do so. As the appellate court decision in Jackson makes clear, there was

conflicting evidence as to whether the state’s attorney was present when the defendant pled guilty

to the traffic offenses. See People v. Jackson, 144 Ill. App. 3d 131, 134-35 (1986), rev’d, 118 Ill.

2d 179. The fact that our supreme court never mentions, let alone resolves this controversy, only

further confirms that the presence or absence of an assistant state’s attorney in the courtroom

during the proceedings related to the traffic offenses, which would certainly demonstrate

knowledge by the “proper prosecuting authority,” was not determinative.

¶ 34 Finally, Mr. Nielsen insists that hinging application of Jackson on whether the state’s

attorney had knowledge of the traffic citations is completely workable. Mr. Nielsen argues that the

burden would be on defendants to show knowledge and absent a showing there would be no bar

to bringing later felony charges. But we can imagine no reason that the office of the state’s attorney

of any county would not have presumptive knowledge of all traffic offenses charged in that county.

12 No. 1-22-1809

Thus, rather than a narrow exception to the Jackson holding, Mr. Nielsen is asking us to create an

exception that swallows the rule—something we have no power to do. We therefore deny the

petition for rehearing.

¶ 35 V. CONCLUSION

¶ 36 For the foregoing reasons, we affirm the circuit court’s denial of Mr. Nielsen’s motion to

dismiss the indictment.

¶ 37 Affirmed.

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People v. Nielsen, 2024 IL App (1st) 221809

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2021-CR- 07552(01); the Hon. Shelley Sutker-Dermer, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Kieran M. Wiberg, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Matthew Connors, and Shannon Berkey, Assistant Appellee: State’s Attorneys, of counsel), for the People.